Spousal Support Law Overview
As a general rule, as long as a husband and wife (or registered domestic partners) are living together, they have a mutual duty of support (California Family Code 4300). This statutory support duty applies only while living together — it does not apply when spouses are living separate from each other by agreement. The duty can not be contracted away. It is an unwaivable duty.
However, after divorce, spousal support can be waived or limited by premarital agreement (Family Code 1612(c)).
This marital support duty arises from the “marriage contract.” A spouse owed a duty of support can bring an action against the obligor spouse to enforce the duty of support. (Family Code 4303(a)).
In a judgment of dissolution (divorce), the court may order a party to pay for the support of the other party an amount that the court determines is just and reasonable. This amount is based on the standard of living established during the marriage.
Spousal support is not mandatory during divorce proceedings. Courts have discretion to deny spousal support altogether or to limit it in an amount and/or duration which reflects the ability of both parties to provide for their own needs. (Family Code 4320, 4330(a)). The Court (judge) enjoys broad discretion in this regard.
California Family Code 4320
In ordering spousal support under this part, the court shall consider all of the following circumstances:
(a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:
(1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.
(2) The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.
(b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.
(c) The ability to pay of the supporting party, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living.
(d) The needs of each party based on the standard of living established during the marriage.
(e) The obligations and assets, including the separate property, of each party.
(f) The duration of the marriage.
(g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.
(h) The age and health of the parties.
(i) The immediate and specific tax consequences to each party.
(j) The balance of the hardships to each party.
(k) The goal that the supported party shall be self-supporting within a reasonable period of time. A “reasonable period of time” for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court’s discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section and the circumstances of the parties.
(l) Any other factors the court determines are just and equitable.
The Purpose of Spousal Support
“The facts and the equities in one case may call for no spousal support, or for very short-term support for the purpose of financially assisting one spouse in the transition to single status or until the proceeds from an ordered property division or sale can be received. At the other end of the spectrum are cases where the purpose of spousal support is to provide financial assistance to the supported spouse until the death of one of the spouses because the supported spouse is not able to generate income from employment or assets, or, in any event, an amount of income sufficient to provide for his or her reasonable living expenses In between are the myriad of factual circumstances which the trial court must consider in making its order for purposes which vary from case to case [e.g., fixed-term support to enable supported spouse to obtain or complete an education, to stay home to care for young children, or to become self-supporting within a reasonable time].
In other words, the purpose of spousal support cannot be defined by the Legislature; it is a determination to be made by the trial court in each case before it, based upon the facts and equities of that case, weighing each of the circumstances or guidelines specified by the Legislature in Fam.C. § 4320, which are applicable to that case, as well as those specified by appropriate appellate case law
The issue of spousal support, including its purpose, is one which is truly personal to the parties.”
Marriage of Smith, 225 CA3d at 480–481, 274 CR at 916–917
One Reason to Deny Spousal Support
Proof that the spouse requesting support has failed to make reasonable good faith efforts to become self-supporting (where capable of self-sufficiency) is admissible evidence to show that support should not be awarded or should be awarded at a level less than allegedly needed, or that support already awarded should be modified or terminated. Family Code §§ 4320(l), 4330(b).
Possible Criminal (Penal) Enforcement of Spousal Support Orders
A person who, with notice of a spousal support order (whether temporary or permanent), leaves the state with the intent to willfully fail, without lawful excuse, to pay as ordered, is punishable by up to one-year imprisonment in county jail and/or a fine of up to $2,000. California Penal Code § 270.6.
Effect of Passage of Time
At least where consistent with the supported spouse’s health and age, the weight to be given the marital standard of living as a factor in evaluating “need” for support ordinarily will decrease with the postseparation passage of time. See Marriage of Rising (1999) 76 CA4th 472, 478, 90 CR2d 380, 385, fn. 9; Marriage of Shaughnessy (2006) 139 CA4th 1225, 1247, 43 CR3d 642, 656–657.
The Goal of Being Self-Supporting within Half the Length of the Marriage
“The goal that the supported party shall be self-supporting within a reasonable period of time.” Fam.C. § 4320(l). A “reasonable period of time” within which to achieve the goal of self-support “generally shall be one-half the length of the marriage.”
However, “[T]here is nothing talismanic about the ‘one-half of the married life’ concept. It is not an eternal verity or an immutable principle carved in legal stone or etched in judicial steel. It fits some cases, it doesn’t fit others. In some cases the wife is not entitled to a dime. In other cases she must be supported for life. Each and every case must be judged on its own merits. A judicial policy cannot be tolerated which affords blind obedience to the idea that the support order be for a period equal to ‘one-half of the married life.’ In each case the trial court must make a careful and measured judgment reflecting a sound exercise of discretion in the award of spousal support and its duration.” Marriage of Brantner (1977) 67 CA3d 416, 423, 136 CR 635, 639.
The Non-Effect of New Support Sources and Relationships
Without exception, trial courts are statutorily barred from considering the income of a supporting spouse’s subsequent spouse or nonmarital partner in determining or modifying spousal support. Family Code § 4323(b).
The supporting spouse’s entire financial picture (income and expenses) must be considered as if he or she were not remarried or cohabiting. Marriage of Romero, 99 CA4th at 1445–1446, 122 CR2d at 227–228.
Spousal Support Non-Dischargeable in Bankruptcy
Like child support, court-ordered spousal support (even if assigned to a governmental agency), including interest accruals thereon, is a “domestic support obligation” that is not dischargeable in the obligor’s bankruptcy. 11 USC §§ 523(a)(5). The obligation continues and is collectible during the bankruptcy, and is also in the first-priority position for payment as against the obligor’s other creditors. 11 USC §§ 362 (b)(2)(A)(ii) & (B).
Change of Circumstances the Basis for Modification of Spousal Support Orders
Assuming continuing spousal support jurisdiction, a spousal support modification may be granted only if the party seeking the modification shows a material change of circumstances since the most recent order. Marriage of West (2007) 152 CA4th 240, 246, 60 CR3d 858, 863; Marriage of Tydlaska (2003) 114 CA4th 572, 575, 7 CR3d 594, 595.
Absent a change of circumstances, a motion for modification would be nothing more than an “impermissible collateral attack on a prior final order.” Marriage of Biderman (1992) 5 CA4th 409, 412–413, 6 CR2d 791, 792–793.
As with the fixing of an initial spousal support order, a court asked to modify spousal support must consider and weigh all of the appropriate spousal support factors under Fam.C. § 4320. Marriage of West, 152 CA4th at 247, 60 CR3d at 864; see Marriage of Olson (1993) 14 CA4th 1, 9, 17 CR2d 480, 486.
The moving party’s income and expense declaration must be current as of the time of the modification hearing. Marriage of Tydlaska (2003) 114 CA4th 572, 576, 7 CR3d 594, 596.
In Marriage of Wilson (1988) 201 CA3d 913, 917–920, 247 CR 522, 524–527, after support had been paid to the ex-wife for almost five years following a less-than-six-year marriage, notwithstanding the ex-wife’s unemployability and disabilities and the ex-husband’s conceded ability to pay, the court determined the time had come to “shift [the ex-husband's] support obligation to society.” The termination of support was upheld on appeal.
Burden on the Supported Party During Modification Attempts
The burden is on the supported party to prove an appropriate “failure of assumptions” by credible evidence of his or her inability to become self-supporting. The burden is not met by evidence of the obligor’s increased income and earning power because that factor has no bearing on the supported party’s ability to earn a living. Marriage of Aninger (1990) 220 CA3d 230, 241, 269 CR 388, 394.
In order to justify a continuation of support beyond the termination date, the supported party must demonstrate a change of circumstances since the prior order. There must be some deviation from the reasonable expectation of his or her ability to become self-supporting within the specified period of time. The supported party must also show he or she made some reasonable effort to become self-supporting. Marriage of Berland, 215 CA3d at 1263–1264, 264 CR at 213.
In opposing the modification, the obligor need not establish the obligee’s failure to become self-supporting was due to “bad faith.” A showing of the supported spouse’s poor judgment or lack of reasonable diligence in pursuing a certain career or career training is sufficient to warrant denial of the requested modification and ultimate termination in accordance with the Richmond/step-down order. Marriage of Berland, 215 CA3d at 1264, 264 CR at 213.
Mandatory Termination Once Self-Sufficient
Support cannot be continued if there are no minor children and the supported party has acquired a separate estate, including income from employment, sufficient for his or her proper support. In such circumstances, the court must grant a motion to terminate the support order. Fam.C. § 4322; Marriage of Terry (2000) 80 CA4th 921, 928, 95 CR2d 760, 764.